Breyer Retires. Now What?

Hi, all.

As I’m sure many of you already heard this week, Supreme Court Justice Stephen Breyer announced that he will be retiring at the end of the current term. With the Supreme Court being one of the three major branches of the American government and Justice Breyer being one of the nine justices on the court, this is a pretty big deal. What makes it a slightly less big deal is that it seems likely (knock on wood) that Breyer’s vacated spot will likely be filled by another liberal justice (given that President Biden is a Democrat and the Senate is under Democratic control) and so the balance of conservatives vs. liberals should stay the same as it is now. Nonetheless, it’s a good time to check in with how the Supreme Court has impacted and will impact climate policies and actions. 

First, some history: Breyer was on the Court in 2007 when it heard its first climate change case: Massachusetts vs. EPA. The case turned on the question of if the EPA had the authority to regulate greenhouse gas emissions, and Breyer, along with four other justices, ruled that yes, indeed, the EPA does have that power (phew). You can read more about Breyer’s track record on the environment here. 

More recently, a case called West Virginia et al. vs. EPA has come before the Supreme Court wherein coal companies are seeking to limit the EPA’s ability to reduce climate pollution under the claim that the Obama-era Clean Climate Plan would be unconstitutional. BUT, thanks to the Trump Administration, the plan never even went into effect, so the case is about a hypothetical rule, but with potentially very real consequences. Read more about it here. 

Though the courts and lawsuits have historically been (and continue to be) an important tool for the environmental movement, what can be done through the judicial process is ultimately quite limited, as it decides what is legal and what is not, but it provides very little structure for constructing new ways for confronting the climate crisis. For example, it is possible for courts to stop oil and gas leases (as they just did for drilling in the Gulf of Mexico), but they can’t pass any new legislation or policies that are vital for fighting the climate crisis. 

The fact that the Court is under a conservative majority makes hopes that the Supreme Court could be a climate champion even dimmer. Here’s an article about “How the US supreme court could be a threat to climate action in the US.”

Nevertheless, it’s exciting that Biden has the opportunity to nominate a new justice to the Supreme Court, and it is likely that the new justice will be to the left of Breyer, and hopefully, she will be a voice for the climate. The Supreme Court will almost certainly not be the way we “fix” climate change in this country, but it never hurts to have a sane, climate-conscious, life-time-term voice in the highest levels of our government. 

And with all this legal talk this week, I’d recommend checking out the action centers of EarthJustice, the Environmental Defense Fund, and the Center for Biological Diversity, three national organizations known for duking it out in the legal arena.